Brandis: Opposition may not support cutting up of Federal Magistrates Court

Shadow Attorney-General George Brandis hinted in Senate estimates committee hearings that the Opposition may not support the cutting up of the Federal Magistrates Court into the Family Court and Federal Court.

Calling the move “controversial”, and that the Federal Magistrates Court was in “chaos”, Senator Brandis noted that the move would save taxpayers $1.6M a year, when the annual budget for the Family Court is $177M a year.

He told the hearing that there are a number of Federal Magistrates who would not join either court.

An officer of the Attorney-General’s Department said that Acting Chief Federal Magistrate Baumann, and Federal Magistrates Burchardt, Connolly, Donald and Driver had attended a meeting with officers of the Attoney-General’s Department, at which Acting Chief Federal Magistrate Baumann stated that he was very concerned about the lack of wisdom of the recommendations that the Federal Magistrates Court be absorbed into the Family Court.

A Federal Magistrate leaked a copy of the minutes of that meeting to him. Senator Brandis said:

(T)he minutes read:

If a Federal Magistrate decides not to accept any new commission but retains the
commission as a Federal Magistrate in the Federal Magistrates Court, it is
intended that the jurisdiction of the court will be exclusively family law
matters assigned to the court by the Family Court.

Then four options are set out, including what is to happen with federal magistrates who do not participate.

The CEO of the Family Court and acting CEO of the Federal Magistrates Court, Mr Richard Foster, said that a majority of Family Court judges were for the move, although some were ambivalent and a number were opposed.

There was this exchange between Senator Brandis and Mr Foster:

Senator BRANDIS-Now that we are talking about eliminating the Federal Magistrates Court as an element of the federal judiciary, you are aware, are you not, that there are many
federal magistrates who are deeply unhappy and strongly opposed to this measure?
Mr Foster—Yes, I am aware of that.
Senator BRANDIS—You are aware, are you not, that even among those federal magistrates who support or are prepared to go along with the Semple recommendations there are concerns that they have not been given sufficient information?
Mr Foster—I think there are concerns about the detail that would follow the decision. As I understand it, Mr Govey recently had a meeting with several of the FMs—federal magistrates—in Melbourne in an attempt to provide further information. But the detail of the proposal in relation to the structure of courts, I guess, is yet to emerge. Certainly there has been plenty of information provided in relation to the integration of the administration, and there will continue to be so. I do not get a sense, certainly not in the Family Court or in the
Federal Magistrates Court generally, that there is great concern about that happening.
Senator BRANDIS—About a lack of information?
Mr Foster—Not about a lack of information. About the integration of the administration.

Mr Foster, agreeing that there was great dissatisfaction by Federal Magistrates with the proposed merger, commented on a report that up to a quarter of Federasl Magistrates were opposed to the move and were threatening to resign:

Senator BRANDIS—The Federal Magistrates Court appears to be so bitterly divided over the issue that it
was reported in the Australian newspaper on Friday, 15 May, the Friday before last, by Mr Pelly and Ms
Berkovic, two reputable journalists who cover legal affairs for that newspaper, that 15 federal magistrates who
do general law work are saying that they are prepared to resign over plans to give effect to the Semple report.
You must have seen that report.
Mr Foster—I did read that report, but I do not know where it came from.
Senator BRANDIS—It came from the 15, presumably. The journalists would not have made it up, I am sure.
Mr Foster—I do not know where it came from.
Senator BRANDIS—How many federal magistrates are there at the moment—about 60?
Mr Foster—There are 61.
Senator BRANDIS—So there is a credible report that 15 of them, one-quarter of the entire court, are so energised and anxious about this proposal that they are actually threatening to resign. If that report is true, it paints a very ugly picture of the esprit de corps of that court, doesn’t it?
Mr Foster—It does, but I do not know where that came from. I read the report in the paper—
Senator BRANDIS—Are you in a position to dispute.
Mr Foster—I do not know; I have not asked about who would resign. I do not think that is a matter for me to deal with.
Senator BRANDIS—If you are the CEO, albeit the acting CEO, of a court one-quarter of whose members are talking to journalists about resigning from the court, that is a very serious matter, isn’t it?
Mr Foster—I think it is a very serious matter but I think that is a matter for the judicial head to deal with, not the CEO. My responsibility is to assist the Chief Federal Magistrate in the administration of the court. It is not to be responsible for who may or may not consider resigning from the court. I think that is clearly a judicial matter and not an administrative matter.
Senator BRANDIS—It is all very well for you to say that but, as Mr Wilkins kindly reminded me earlier on, the judicial head of the court cannot appear before this committee. The person whom the court puts up to appear before this committee and speak on its behalf to the parliament is you.
Mr Foster—I am not saying that that story was true and that it is not concerning.
Senator BRANDIS—No; you told me you are not in a position to dispute it.
Mr Foster—But I do not know whether it is or it is not.